Punjab-Haryana High Court
Vikram Choudhary vs Varun Khetarpal on 2 April, 2024
Neutral Citation No:=2024:PHHC:044519
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279 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-26764-2021
Date of Decision:02.04.2024
Vikram Choudhary ...Petitioner
Vs.
Varun Khetarpal ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Mr. Gurinder Singh Goraya, Advocate
for the petitioner.
Mr. Anupinder Brar, Advocate for
Mr. D.P.S Bajwa, Advocate
for the respondent.
***
N.S.Shekhawat J.
1. The petitioner has filed the present petition under Section 482 Cr.
P.C with a prayer to quash the impugned order dated 11.12.2017, passed by the
Court of Additional Sessions Judge, Karnal (Annexure P-2), to the extent of
imposing of compounding fee at the rate of 15% of the cheque amount.
2. Learned counsel for the petitioner contends that the respondent had
filed a criminal complaint No.575 of 2014 in the Court of Judicial Magistrate
Ist Class, Karnal under Section 138 of the Negotiable Instruments Act
(hereinafter referred to as the "Act") for recovery of cheque amount bearing
No.891611 dated 27.12.2013 drawn on OBC Bank, Karnal for an amount of
Rs.14,00,000/- and after holding the trial, the Trial Court convicted the
petitioner under Section 138 of the "Act" and was sentenced to undergo RI for
two years and compensation of Rs.14,00,000/- was ordered to be paid by him.
Learned counsel for the petitioner further contends that the petitioner filed an
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appeal i.e. CRA-106/2019 before the Court of Additional Sessions Judge,
Karnal, however, during the pendency of the appeal, the matter was
compromised between the parties and the parties filed an application for
compounding of the offence under Section 147 of the Negotiable Instruments
Act on 10.12.2017, however, vide the impugned order dated 11.12.2017, the
Appellate Court held that the present petitioner/accused would be liable to pay
the compounding fee at the rate of 15% of the cheque amount in view of the
judgment passed by the Hon'ble Supreme Court in the matter of "Damodar S.
Prabhu Vs. Sayed Babalal H(2010) 5 SCC 663. Learned counsel for the
petitioner further contends that in fact, three cheques of total amount of
Rs.50,00,000/- issued by the petitioner were dishonoured and three different
complaints were filed against him, including the present complaint. Thus, the
total amount of compounding fee at the rate of 15 % comes out of Rs.7.50 lacs
in all the three cases collectively. He further contends that the petitioner is a
small businessman and during the period of nationwide lockdown, due to
Covid-19 Pandemic, the business of the petitioner was ruined and his financial
condition has further deteriorated. He further contends that the petitioner is on
the verge of starvation and a lenient view may be taken in the present case.
3. On the other hand learned counsel appearing on behalf of
respondent submits that the respondent has no objection, in case, the prayer is
made by the present petitioner is accepted by this Court.
4. I have heard learned counsel for the parties and perused the record
carefully.
5. The Hon'ble Supreme Court has held in the matter of Damodar S.
Prabhu Vs. Sayed Babalal H., AIR 2010 (SC) 1907: 2010(2) RCR (Criminal
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851) as follows:-
15. With regard to the progression of litigation in cheque
bouncing cases, the learned Attorney General has urged this Court
to frame guidelines for a graded scheme of imposing costs on
parties who unduly delay compounding of the offence. It was
submitted that the requirement of deposit of the costs will act as a
deterrent for delayed composition, since at present, free and easy
compounding of offences at any stage, however belated, gives an
incentive to the drawer of the cheque to delay settling the cases for
years. An application for compounding made after several years
not only results in the system being burdened but the complainant
is also deprived of effective justice. In view of this submission, we
direct that the following guidelines be followed:-
THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the Writ of Summons be
suitably modified making it clear to the accused that he
could make an application for compounding of the offences
at the first or second hearing of the case and that if such an
application is made, compounding may be allowed by the
court without imposing any costs on the accused.
(b) If the accused does not make an application for
compounding as aforesaid, then if an application for
compounding is made before the Magistrate at a subsequent
stage, compounding can be allowed subject to the condition
that the accused will be required to pay 10% of the cheque
amount to be deposited as a condition for compounding with
the Legal Services Authority, or such authority as the Court
deems fit.
(c) Similarly, if the application for compounding is made
before the Sessions Court or a High Court in revision or
appeal, such compounding may be allowed on the condition
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that the accused pays 15% of the cheque amount by way of
costs.
(d) Finally, if the application for compounding is made
before the Supreme Court, the figure would increase to 20%
of the cheque amount.
Let it also be clarified that any costs imposed in
accordance with these guidelines should be deposited with the
Legal Services Authority operating at the level of the Court before
which compounding takes place. For instance, in case of
compounding during the pendency of proceedings before a
Magistrate's Court or a Court of Sessions, such costs should be
deposited with the District Legal Services Authority. Likewise,
costs imposed in connection with composition before the High
Court should be deposited with the State Legal Services Authority
and those imposed in connection with composition before the
Supreme Court should be deposited with the National Legal
Services Authority.
16. We are also in agreement with the Learned Attorney
General's suggestions for controlling the filing of multiple
complaints that are relatable to the same transaction. It was
submitted that complaints are being increasingly filed in multiple
jurisdictions in a vexatious manner which causes tremendous
harassment and prejudice to the drawers of the cheque. For
instance, in the same transaction pertaining to a loan taken on an
installment basis to be repaid in equated monthly installments,
several cheques are taken which are dated for each monthly
installment and upon the dishonor of each of such cheques,
different complaints are being filed in different courts which may
also have jurisdiction in relation to the complaint. In light of this
submission, we direct that it should be mandatory for the
complainant to disclose that no other complaint has been filed in
any other court in respect of the same transaction. Such a
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disclosure should be made on a sworn affidavit which should
accompany the complaint filed under Section 200 of the CrPC. If it
is found that such multiple complaints have been filed, orders for
transfer of the complaint to the first court should be given,
generally speaking, by the High Court after imposing heavy costs
on the complainant for resorting to such a practice. These
directions should be given effect prospectively.
17. We are also conscious of the view that the judicial endorsement
of the above quoted guidelines could be seen as an act of judicial
law-making and therefore an intrusion into the legislative domain.
It must be kept in mind that Section 147 of the Act does not carry
any guidance on how to proceed with the compounding of offences
under the Act. We have already explained that the scheme
contemplated under Section 320 of the CrPC cannot be followed in
the strict sense. In view of the legislative vacuum, we see no hurdle
to the endorsement of some suggestions which have been designed
to discourage litigants from unduly delaying the composition of the
offence in cases involving Section 138 of the Act. The graded
scheme for imposing costs is a means to encourage compounding
at an early stage of litigation. In the status quo, valuable time of
the Court is spent on the trial of these cases and the parties are not
liable to pay any Court fee since the proceedings are governed by
the Code of Criminal Procedure, even though the impact of the
offence is largely confined to the private parties. Even though the
imposition of costs by the competent court is a matter of discretion,
the scale of costs has been suggested in the interest of uniformity.
The competent Court can of course reduce the costs with regard
to the specific facts and circumstances of a case, while recording
reasons in writing for such variance. Bona fide litigants should of
course contest the proceedings to their logical end. Even in the
past, this Court has used its power to do complete justice under
Article 142 of the Constitution to frame guidelines in relation to
subject-matter where there was a legislative vacuum.
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6. So far as 15% of the cheque amount in terms of ratio of Damodar
S. Prabhu's case (supra) is concerned, I am of the view that Section 147 of the
Negotiable Instruments Act does not contain any guideline or procedure for
proceeding with the compounding of the offences. Since scheme under Section
320 Cr.P.C cannot be followed in stricto sensu, therefore, Hon'ble Apex Court
has also clarified that in order to discourage chronic litigants from delaying the
composition of the offence under Section 138 of the Act, the scheme for
imposing costs is considered to be a valid means to encourage compounding at
the earliest. Valuable time of the Court is also involved in the trial of the cases
and the parties are not liable to pay any Court fee in such proceedings, even
though the impact of the offence is largely confined to the private parties. The
imposition of costs would be a matter of discretion of the Court.
7. In view of the fact that the parties have resolved their differences
and has compromised the mater and also the fact that the petitioner has suffered
huge financial losses, I am of the view that the 15% of the cheque amount
towards cost(s) of litigation/compounding can be reduced to 05% of the cheque
amount in the present case. Accordingly, the present petition is partly allowed
and the impugned order dated 11.12.2017, passed by the Court of Additional
Sessions Judge, Karnal is modified to the extent that the petitioner/accused shall
be liable to pay the compounding fee at the rate of 05 % of the cheque amount.
9. The petition stands disposed off.
(N.S.SHEKHAWAT)
02.04.2024. JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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